Keys Lobster, Inc. v. Ocean Divers, Inc.
| Decision Date | 16 April 1985 |
| Docket Number | No. 84-312,84-312 |
| Citation | 10 Fla. L. Weekly 993,468 So.2d 360 |
| Parties | 10 Fla. L. Weekly 993 KEYS LOBSTER, INC., a Florida corporation, Appellant, v. OCEAN DIVERS, INC., a Florida corporation, Appellee. |
| Court | Florida District Court of Appeals |
James Thomas Lynch, James S. Mattson, Key Largo, for appellant.
Bercuson, Cahan, Weksler & Lasky, David Bercuson and Steven D. Kaufman, Miami, for appellee.
Before SCHWARTZ, C.J., and BARKDULL and JORGENSON, JJ.
Keys Lobster, Inc. [Keys Lobster] appeals from a final order denying an award of attorney's fees.
Keys Lobster and Ocean Divers, Inc. [Ocean Divers] entered into a lease, a provision of which granted Ocean Divers "the right of first refusal [to purchase the leased property] at the price said property is offered to others." Thereafter, Keys Lobster entered into a purchase agreement with third parties for the sale of the property. The agreement was made subject to Ocean Divers' right of first refusal. A copy of this agreement was submitted to Ocean Divers for its consideration. Ocean Divers sent a letter to Keys Lobster stating that it was exercising its right of first refusal "under the terms of the ... Purchase Agreement." One term of the agreement provided: After reviewing Ocean Divers' financial condition, Keys Lobster concluded that Ocean Divers was not creditworthy and, as a result, refused to sell the property to Ocean Divers. Ocean Divers brought an action against Keys Lobster seeking to have Keys Lobster specifically perform its agreement to sell Ocean Divers the property. The trial court entered judgment for Keys Lobster, finding that Ocean Divers, by exercising the right of first refusal, "assumed [the third parties'] place under the Purchase Agreement ... subject to all its terms and conditions," and that Keys Lobster acted reasonably and in good faith in disapproving the credit of Ocean Divers and in refusing to sell Ocean Divers the property as provided by paragraph 1.d. of the purchase agreement. 1
The court held a hearing to determine whether Keys Lobster was entitled to an award of attorney's fees based upon a clause of the purchase agreement providing for the recovery of reasonable attorney's fees incurred by the prevailing party "in connection with any litigation arising out of [the] contract." The court concluded that "there was never a meeting of the minds of the parties as to conveyance of the subject property" because an agreement could not be formed "until purchaser's credit was approved by seller's attorney." Finding no contract on which to base an award of attorney's fees, the court denied the motion.
These findings by the trial court are inconsistent with its prior findings, supporting the final judgment (approved by this court), that Ocean Divers, by its letter exercising the right of first refusal, accepted Keys Lobster's offer to sell and that "upon acceptance, Ocean Divers assumed [the third parties'] place under the Purchase Agreement...." We accordingly reverse.
It is well-settled in Florida that attorney's fees cannot be imposed in any cause unless provided for by contract or statute. Dorner v. Red Top Cab & Baggage Co., 37 So.2d 160 (Fla.1948). See also Roberts v. Askew, 260 So.2d 492 (Fla.1972); Golub v. Golub, 336 So.2d 693 (Fla. 2d DCA 1976). There is no statute providing for an award of attorney's fees in this case. Keys Lobster is entitled to recover attorney's fees incurred in the defense of the suit brought by Ocean Divers only if it was a party to a contract with Ocean Divers providing for such a recovery. Keys Lobster contends that Ocean Divers' exercise of its right of first refusal constituted an acceptance on Ocean Divers part to purchase the property under the terms provided in the purchase agreement. Ocean Divers argues that its letter manifesting an intent to exercise the right of first refusal was not an acceptance but rather an offer to purchase, and that its offer was rejected by Keys Lobster on the basis of Keys Lobster's review of Ocean Divers' financial condition.
Ocean Divers' exercise of its right of first refusal cannot properly be construed, consistent with general contract principles, as an offer to purchase. Such a construction would imply that Keys Lobster was free to accept or reject such an "offer." This was clearly not the case. When Ocean Divers sent the letter declaring it was exercising its right of first refusal, " 'the minds of [the] two parties [were] brought to an agreement....' " Bullock v. Harwick, 30 So.2d 539, 541 (Fla.1947); both parties agreed to be bound by the terms of the purchase agreement. 2 The fact that Keys Lobster was excused from performance under the contract because the condition set out in paragraph 1.d. of the purchase agreement was not met does not mean, as the trial court found in its order denying attorney's fees, that "there was never a meeting of the minds of the parties as to conveyance of the subject property" or, as Ocean Divers contends on appeal, that mutuality of obligation was lacking. 3
Turning from general contract principles to principles relating specifically to the exercise of rights of first refusal, the conclusion that Ocean Divers' letter constituted an acceptance is further supported. A right of first refusal is not an option but "ripens into an option once an owner manifests a willingness to accept a good offer." Coastal Bay Golf Club, Inc. v. Holbein, 231 So.2d 854, 857 (Fla. 3d DCA 1970). In this case, Keys Lobster clearly manifested an intent to accept the third parties' offer by entering into the purchase agreement and sending a copy of the agreement to Ocean Divers for its consideration. Ocean Divers' right of first refusal ripened into an option which was exercised when it sent Keys Lobster the acceptance letter. Upon the exercise of the option, a mutually binding and...
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